Comments of Ernest Miller on behalf of LawMeme I. Class of work Ancillary audiovisual works distributed on Digital Versatile Discs (DVDs) using the Content Scrambling System (CSS) of access control. II. Summary of Argument The Content Scrambling System (CSS) is an access control device for ancillary audiovisual works distributed on Digital Versatile Discs (DVDs), a fact affirmed by the 2nd Circuit Court of Appeals. CSS prevents quotation of ancillary audiovisual works distributed on DVDs for purposes of commentary and criticism, which is a noninfringing use under current law. Consideration of the factors enumerated in § 1201(a)(1)(C) supports the conclusion that an exemption is warranted. An exemption will have no effect on the availability for use of copyrighted works: the vast number of ancillary audiovisual works are not available in unprotected formats; CSS access control on DVDs does not support a model beneficial to the public; and, availability of ancillary works on DVDs is driven by consumer demand and filmmaker enthusiasm. The effect on the availability for use of copyrighted works for nonprofit archival, preservation, and educational purposes is negative. The impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism and comment is highly negative: fair use criticism and comment are a core concern of the First Amendment and must be granted special solicitude; the DMCA is a criminal statute and effects on free speech concerns must be scrutinized with particular care; ancillary materials are particularly important elements to quote for purposes of comment and criticism; the mere possibility of copying without violating § 1201(a)(1) is not sufficient to protect strong First Amendment rights; and, there is significant harm to an amateur reviews website and its contributors. The effect of circumvention of technological measures on the market for or value of copyrighted works is slightly positive, with no negative effects. In the alternative, the Librarian of Congress may determine that CSS is not an access control device because it does not control access to a work. This interpretation is supported by Congressional intent and statutory analysis, at best CSS is copy protection. III. Factual Support/Legal Argument LawMeme1 is a collaboration between the Information Society Project at Yale Law School, the Yale Law and Technology Society and the Yale Journal of Law and Technology. The joint project is a collaborative weblog (“blog”) that publishes up-to-date commentary and analysis concerning recent law, technology and policy news. LawMeme published its first article in July 2001. LawMeme thanks you for giving us the opportunity to provide input as you try to formulate your recommendations on whether noninfringing uses of certain classes of works are, or are likely to be, adversely affected by prohibition of circumvention of access control devices. This rulemaking presents a unique opportunity to identify the intent and develop a logical interpretation and implementation of the anti-circumvention provisions of the Digital Millennium Copyright Act (the “DMCA”) 17 U.S.C. § 101 et seq. The DMCA was adopted by Congress and signed into law October 28, 1998 following the passage of two intellectual property treaties by 1 <http://research.yale.edu/lawmeme/> Comments of Ernest Miller on behalf of LawMeme the World Intellectual Property Organization (“WIPO”), the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, which were signed in Geneva, Switzerland in 2 December 1996. Those two new WIPO treaties included substantively identical provisions on technological measures of protection, also commonly referred to as the “black box” or “anticircumvention” provisions. The WIPO treaties contained provisions requiring signature parties to provide “adequate legal protection and effective legal remedies against the circumvention of effective technological measures” that are used by the holders of intellectual property rights. H.R. REP. No. 105-796 at 64 (1998). The DMCA was enacted with certain anti-circumvention provisions. Section 1201(a)(1) of the DMCA governs the act of circumventing “a technological measure that effectively controls access to a work protected under this title” and is the focus of this rulemaking. However, in order to understand fully and interpret properly §1201(a)(1), § 1201(a)(2) and § 1201(b) are discussed herein. For example, § 1201(a)(2), which “supplements the prohibition against the act of circumvention in paragraph (a)(1) with prohibitions on creating and making available certain technologies … developed or advertised to defeat technological protections against unauthorized access to a work.”3 A second anti-trafficking provision is § 1201(b), which “prohibits devices primarily designed to circumvent effective technological protection measures that limit the ability of the copyrighted work to be copied, or otherwise protect the copyright rights of the 4 owner of the copyrighted work.” The distinction between §§1201(a) and 1201(b) is important. Section 1201(a) prohibits use of and trafficking in certain devices that perform access control, while § 1201(b) does not prohibit the act of circumventing, but only seeks to prevent the distribution of certain devices that perform copying. A. The Content Scrambling System (CSS) is an access control device for ancillary audiovisual works distributed on Digital Versatile Discs (DVDs) DVDs contain copies of the motion pictures as well as ancillary audiovisual materials in digital form. DVDs are the latest generation of technology allowing consumers to view motion pictures 5 in their homes. DVDs provide very high quality images that are digitally formatted on a convenient 5-inch disc that is resistant to wear and damage and allows for attractive consumer features not presently available in other video formats. Generally, the video DVDs released by the major motion picture studios incorporate the Content Scrambling System (CSS). CSS is a proprietary encryption scheme. CSS involves encrypting, according to an encryption algorithm, the digital sound and graphics files on a DVD that together constitute a motion picture and ancillary audiovisual works. A CSS- 2 The authors of this comment do not agree that the passage of the WIPO treaties required the adoption of the DMCA. Moreover, they believe the DMCA went far beyond the text of the treaty in imposing restrictions on circumvention devices. 3 H.R. REP. 105-551, pt. 1, at 18 (1998). 4 S. REP. NO. 105-190, at 12 (1998). 5 DVDs can store any digital information. There are several standards for this including DVD-Audio and DVD- ROM. Video DVD is the sole technology at issue in this comment. Comments of Ernest Miller on behalf of LawMeme protected DVD can be decrypted by an appropriate decryption algorithm that employs a series of keys stored on the DVD and the DVD player. In consequence, only players and drives containing the appropriate keys are able to decrypt DVD files and play movies and ancillary material stored on DVDs. As the motion picture companies did not themselves develop CSS and, in any case, are not in the business of making DVD players and drives, the technology for making compliant devices, i.e., devices with CSS keys, had to be licensed to consumer electronics manufacturers. In order to ensure that the decryption technology did not become generally available and that compliant devices could not be used to copy as well as merely to play CSS-protected movies and ancillary materials, the technology is licensed subject to strict security requirements. Moreover, manufacturers may not, consistent with their licenses, make equipment that would supply digital output that could be used in copying protected DVDs. i. The 2nd Circuit Court of Appeals has held CSS to be an access control device In the only case to consider CSS in the context of the DMCA, Universal City Studios, Inc. v. Reimerdes,6 the Southern District of New York (affirmed by the 2nd Circuit Court of Appeals) granted injunctive and declaratory relief for Universal Studios and other motion picture plaintiffs against Reimerdes under § 1201(a)(2) of the DMCA for posting and making DeCSS technology, an unlicensed version of CSS, available on a website. Although Reimerdes was not charged with violation of § 1201(a)(1) for use of a circumvention device,7 he was found liable for trafficking in circumvention devices under § 1201(a)(2). A necessary element of the holding of the case, therefore, is that CSS is a technological measure that effectively controls access to a copyrighted work within the meaning of §1201(a)(2) B. The Content Scrambling System (CSS) prevents quotation of ancillary audiovisual works distributed on Digital Versatile Discs (DVDs) for purposes of commentary and criticism The terms of the CSS technology licensing agreement “permits licensed devices to decrypt and play – but not to copy – the films” and ancillary materials on DVDs.8 Consequently, one cannot access for purposes of copying or quotation, a brief passage or excerpt from the ancillary materials on a DVD for purposes of commentary, criticism and review. 6 Universal City Studios, Inc. v. Reimerdes, 111 F. Supp.2d 294 (S.D.N.Y. 2000), aff’d, Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2nd. Cir. 2001). 7 Section 1201(a)(1) did not come into effect until October 28, 2000, after the case had commenced. 8 Final Rule: Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 65 Fed. Reg. 64555, 64574 at 64568 (2000) (to be codified at 37 C.F.R. pt. 201) [hereinafter Initial Exemption to Prohibition on Circumvention]. Comments of Ernest Miller on behalf of LawMeme C. Quotation for purposes of commentary and criticism of ancillary audiovisual works distributed on Digital Versatile Discs (DVDs) is a noninfringing use under current law Copying or quotation of a work is one of the exclusive rights of the copyright holder as defined in 17 U.S.C.